concurring.—I concur in the judgment. I concur in Mr. Justice Temple’s construction of the act of March 12, 1885, and in his conclusion that the act did not deprive the state of its right to rely upon any defense to this action which it had as the state, other than the right to claim that the state could not be sued, and that the act does not purport to do so.
I decline to express any opinion as to whether the plaintiff’s property was “damaged.” (Const. 1879, art. 1, sec. 14.) The property of the plaintiffs, if “taken” at all, was taken prior to the adoption of the present ■constitution.
I adhere to the views expressed herein in Department One.
The question whether the damages caused by the work done under the direction of the commissioners, appointed by the act of 1862, was a taking of private property, within the meaning of the provision of the former constitution prohibiting a taking of private property without compensation, was fully decided, adversely to such contention, by the highest judicial tribunal under that constitution. The questions involved in the judgment in Green v. Swift, 47 Cal. 536, must be considered as closed upon the doctrine of stare decisis.